Immigrants and Public Benefits

Table of Contents:

Updates:

NM Center on Law and Poverty is pleased to announce the settlement of a federal law suit challenging the Human Service Department’s (HSD) unlawful practice of demanding unnecessary information from immigrant families when they apply for Medicaid and SNAP. The law is clear that the state can require only those members of a family who are seeking benefits for themselves to provide their Social Security Number (“SSN”) and proof of immigration status. In other words, HSD cannot require SSNs and proof of immigration status from those family members who are not applying for benefits. For example, a mother who is seeking Medicaid and SNAP for her children need only provide the SSN and immigration status of her children, and not for herself or anyone else in her family. In 2008, a federal court ordered HSD to stop unlawful requests for SSNs. However, after almost 6 years of advocacy by NMCLP, HSD continued to violate the law and turn away eligible members of immigrant families. For this reason, NMCLP sought a contempt holding and sanctions in order to compel HSD to comply with federal law and prior court orders. In February of 2014, Plaintiffs’ counsel and HSD settled that law suit. The settlement represents a major success in ensuring eligible immigrant families and children receive benefits to which they are entitled, including:

Changes to New Mexico’s Streamlined Application for public benefits, making it clear what information is required.

Mandatory training and policy directives for HSD supervisors and employees on immigrant eligibility for public benefits.

Immigrant Eligibility for Benefits:

Applying for public benefits such as Medicaid, SNAP (food stamps) and cash assistance, like TANF and GA, is often a confusing process, even for non-immigrants. For immigrants, the system is even more complicated. For basic information about immigrant eligibility, download our brochure in English or in Spanish. This page provides information about some of the most common questions and concerns regarding immigrants applying for benefits for themselves or their families. Because figuring out how immigration law and rules about public benefits work together can be so complicated, if you have any questions, you should call our office at (505) 255-2840.

How Do I Know If Anyone in My Family Is Eligible for Public Benefits?

Determining Eligibility

Because of the way immigration law and public benefits law intersect, the rules about which immigrants may qualify for which types of benefits are complex. This chart provides a comprehensive view of eligibility, organized by benefit program; it is also available in Spanish. This table, organized by immigration status, provides information on a more limited number of New Mexico benefits programs.

As a general rule:

United States Citizens are eligible for all benefits programs.

Lawful Permanent Residents (LPRs, or “green card” holders) are eligible for all benefits programs, but for some programs there is 5 year waiting period before they can apply. There is no waiting period for cash assistance (TANF/NM Works or General Assistance), children younger than 18 or adults receiving disability assistance who apply for SNAP, or pregnant women or children applying for Medicaid.

“Qualified Immigrants” are eligible for most – but not all – benefits programs. Under federal law, qualified immigrants are refugees, asylees, persons granted withholding of removal, conditional entrants, persons paroled into the U.S. for one year, Cuban/Haitian entrants, certain battered spouses and their children, and certain victims of trafficking.

Certain Other Immigrants are eligible for some benefits programs even though they are not “qualified immigrants” under federal law. This group of immigrants includes Iraqi and Afghan immigrants granted special status, certain American Indians born in Canada, and certain Amerasian immigrants.

Undocumented Immigrants are not eligible for most programs. However, they are eligible for some public benefits programs. These programs are:

WIC (nutritional assistance for pregnant and breastfeeding women and children five years old and younger).

EMSA (Emergency Medicaid Services for Aliens) – see our fact sheets in English and in Spanish for more information.

School Breakfast/Lunch Programs; inquire at your child’s school for more information.

Many New Mexicans live in “mixed status” households. In these households, family members may have a variety of different immigration statuses –citizens, lawful permanent residents (LPRs or “green card” holders), undocumented immigrants, and other types of immigrants often live under one roof. While the eligibility rules for each type of immigration status will be different, it is important to remember that only the immigration status of the person applying for benefits matters. This means that:

Children are often eligible for benefits even when their parents are not. Citizen, LPR and other immigrant children may be able to get public benefits even if they are living with family members who are undocumented.

Undocumented parents, grandparents, and other caretakers can apply for benefits on behalf of eligible family members. Undocumented family members are required to list their names on the application and to provide proof of income, but are not required to provide social security numbers or proof of immigration status.

There are safe, easy ways to protect the privacy of undocumented family members in the application process. See the “Fear of Reporting” section of this page for tips on ways to safely apply.

How Do I Safely Apply for Benefits?

Fear of Reporting

Many immigrants from mixed status households do not apply for benefits because they are afraid that HSD workers will report undocumented family members to immigration authorities. HSD is only permitted to report undocumented immigrants to immigration officials under very limited circumstances. It is a violation of state law for ISD employees to report applicants to immigration authorities under any other circumstances. State employees should never report undocumented immigrants who apply for Medicaid. In very limited circumstances, state employees are required to report immigrants who are applying for cash assistance, SNAP, SSI, or federal housing benefits, but only if:

The person is seeking benefits for themselves (not for family members); and

HSD has “knowledge” of the unlawful presence supported through a “finding of fact or conclusion of law” made by the agency as part of a “formal determination that is subject to administrative review”; and

DHS has made a determination of unlawful presence, such as a Final Order of Deportation or Removal.

To safely apply while protecting the privacy of undocumented family members (including yourself), follow these rules:

Be sure to list all members of the household – whether undocumented or not – on the application.

Never provide false social security numbers or other false information. If social security numbers appear on income documents (such as pay stubs) of undocumented family members, black out those numbers before submitting the documents to HSD. Remember that the only thing HSD needs to know about members of the household who are not applying for benefits is their name and income; HSD should not ask about immigration status.

Never state to a worker or in writing that someone living in your household is undocumented. Instead, leave spaces blank, write “not applicable,” or tell the worker that the person is “not in an eligible status.”

If you have questions about how to apply for benefits while keeping undocumented household members as safe as possible, please contact us at the Center (505) 255-2840.

Public Charge

“Public charge” is a test by immigration authorities to determine if an immigrant is likely to depend on the government for support in the future. While most immigrants do not need to worry about public charge, it can result in the denial of Lawful Permanent Resident (LPR) status to an immigrant or in denial of re-entry into the country for an LPR! The National Immigration Law Center has produced this fact sheet to answer some common questions about public charge.

The following rules apply to the “public charge” test:

Only certain benefits – cash assistance and Medicaid for long-term institutional care – are considered for public charge purposes. TANF/New Mexico Works, General Assistance, SSI, and Medicaid-funded, long-term care in a nursing home or mental health institution can impact public charge.

Other benefits programs will not impact public charge, regardless of the applicant’s immigration status. It is safe to apply for Medicaid, SNAP (Food Stamps), WIC, School Lunch, Child Care Assistance, Social Security, educational assistance, health insurance and health services, and government pensions. Receiving these benefits cannot affect your application for LPR status or re-entry to the United States.

Public charge generally applies only to people who are trying to become Lawful Permanent Residents (LPRs). It also applies to LPRs who leave the United States for longer than 6 months.

Know Your Rights:

Immigrants who apply for benefits should follow the same rules as anyone else applying. Our Application Rights page can help you get started. However, there are some special additional considerations for immigrant families. Immigrants can encounter special problems with documenting income, for example. If you experience difficulties applying that cannot be resolved with ISD, please contact the Center for assistance.

Language Access

If you have a limited ability to speak, write, read, or understand English, you have a right to receive services in a language you understand. Visit our Language Access and Public Benefits page to learn more about your right to an interpreter and to translated materials.

Documenting Income

Applicants in non-traditional employment situations (for example, employees who are paid in cash) can sometimes run into problems documenting how much they earn. In addition, it can be challenging to produce the documents the state says it needs to make an eligibility determination and they need help getting them.

The Center has produced a set of new materials designed to help applicants for public benefits with these documentation problems.

If you need assistance with getting the documentation you need for your public benefits application, use our Request for Assistance form in English or Spanish.

If you don’t have pay stubs or other traditional documentation and you need to prove where you work and how much you make, use our Sworn Statement in English or Spanish.

If you want to learn more about the ways the Income Support Division is required to help you to prove income, check out our new Income Documentation Factsheet in English or Spanish.

Persevere!

If you believe that your application was improperly denied, or if your benefits amount is reduced and you don’t understand why, ask for a fair hearing. HSD makes mistakes and often asking for a hearing is enough to get the Department to review your file and correct the error. Even if the denial or the reduction was lawful, you have a right to an explanation, so don’t give up until you understand why your application was rejected or your benefits were reduced.

For help preparing for your hearing, you can contact attorneys at the Center at (505) 255-2840. Other statewide legal services providers such as New Mexico Legal Aid and Law Access can help you understand what to expect and provide advice or even direct representation through the hearings process. For information about how to request a fair hearing, check out our pamphlets in English, Spanish and Vietnamese.

Our Advocacy on Immigrant Access to Benefits

Thousands of New Mexico residents who qualify for public benefits currently do not access them because they don’t know they are eligible or they experience barriers to enrollment. Based on our conversations with community members and our outreach in the state, we believe that this underenrollment is disproportionately high among immigrant families. The Center uses a combination of community outreach and education and administrative advocacy to make it easier for eligible immigrants to access benefits. Our current advocacy on immigrant access to benefits includes:

Pushing for the adoption of regulations and policies that facilitate the enrollment of eligible immigrants in public benefits programs. Many “mixed status” immigrant families do not apply for benefits for which they are eligible because they are afraid this could put undocumented immigrant family members in danger of deportation. Under federal law, states are only required to report undocumented immigrants under a very narrow set of circumstances. We encourage HSD to issue rules and implement policies that make clear that eligible immigrants can safely apply for benefits without worrying about unintended consequences for undocumented family members.

Keeping track of changes in federal law and advocating for parallel changes to state regulations so that state offices are consistently applying federal requirements.

Ensuring that applications and renewal forms request only information that is necessary to process immigrant families’ applications. This includes making sure that forms do not request social security numbers or immigration status information for household members who are not requesting benefits for themselves.

Monitoring HSD’s current practices to be sure that all offices are complying with current federal and state law on immigrant eligibility for benefits. When an ISD office is incorrectly interpreting the regulations – for example, by imposing waiting periods or asking for documentation when the law does not require it – we work closely with state officials to make sure that the policy is changed and ISD workers are educated on correct policies and procedures.

Conducting regular community outreach and trainings to spread the word about immigrant eligibility for benefits and hear stories about barriers to enrollment. This work includes collaborating with legal services providers and other advocates to learn about recurring problems and barriers for immigrants. We use these stories to inform our continuing policy work.

The Center provides training to community groups and advocates to ensure that New Mexican immigrants know their rights and have the tools they need to access the public benefits programs. If you are interested in having the Center give a presentation to your group or organization, please contact Sovereign Hager by phone at (505) 255-2840 or by email at sovereign@nmpovertylaw.org. Please note that we can only arrange trainings for groups of 10 or more people.